Marriage Is Not the Same Around the Globe, Says Advocate for Same-Sex Couples

By Lisa Leff and Paul Elias | January 12, 2010 | 4:58 AM EST

Stuart Gaffney, left, and John Lewis, right, who married in 2008 and were plaintiffs in an earlier lawsuit urging the legalization of same-sex marriage, attend a rally in front of a federal courthouse in San Francisco on Monday, Jan. 11, 2010. (AP Photo/Paul Sakuma)

San Francisco (AP) - Testimony in a groundbreaking legal challenge to California's same-sex marriage ban resumes Tuesday with testimony from two Ivy League historians who will discuss the nation's experience with matrimony and anti-gay discrimination.

The trial, which began Monday, is the first in a federal court to decide the constitutionality of state bans on gay marriage. Regardless of the outcome, the case is likely to be appealed to the U.S. Supreme Court, where it could lead to laws that restrict marriage to a man and a woman being upheld or abolished nationwide.

Nancy Cott, a U.S. history professor at Harvard and the author of a book on marriage as a public institution, is scheduled to take the witness stand for a second day.

Cott, a witness appearing on behalf of two gay couples who are suing to overturn Proposition 8, on Monday disputed assertions made by the measure's sponsors during the 2008 campaign that cultures around the world always have recognized marriage only as a union of a man and a woman.

"To think of marriage as universal, the same around the globe, simply is not accurate," Cott said, explaining that America's founders knew that group marriages were common in other societies and among some Native American tribes. "The Bible is a document with characters that are practicing polygamy, which is the case with ancient civilizations."

After Cott is cross-examined by lawyers for Proposition 8's backers, who are defending the voter-approved initiative in court, Yale history professor George Chauncey is expected to testify about anti-gay bias. Chauncey also was an expert witness in a landmark gay rights case that resulted in the U.S. Supreme Court invalidating a 1992 Colorado law that sought to prevent cities from extending civil rights protections to gays.

The expert testimony will mark a change in tone from the trial's first day, when two same-sex couples gave intimate accounts of their private and public lives, at times tearfully testifying about moments of awkwardness, disappointment and shame that they said resulted from their inability to legally wed.

"I've been in love with a woman for 10 years, and I don't have access to a word for it," said 45-year-old Kristin Perry of Berkeley, the lead plaintiff. "In a store, people want to know if we are sisters or cousins or friends, and I have to decide every day if I want to come out wherever we go, if we are going to risk that negative reaction."

Perry and her partner, Sandra Stier, 47, and a gay couple from Los Angeles, Paul Katami, 37, and Jeffrey Zarrillo, 36, were the first witnesses.

Attorney Theodore Olson, left, is representing same-sex couple Kristin Perry and Sandra Stier and attorney David Boies is representing same-sex couple Jeff Zarrillo and Paul Katami. The two lawyers are seen here at a Jan. 11, 2010 news conference in San Francisco. (AP Photo/Paul Sakuma)

The couples' chief attorneys are noted conservative litigator Theodore Olson and one of his former liberal adversaries, David Boies. Earlier in the day, Olson quoted the U.S. Supreme Court's own lofty description of matrimony to demonstrate what his clients were being denied.

"In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals," said Olson, who represented George W. Bush during the Florida recount in 2000 and later served as his solicitor general.

Olson had barely launched into his opening statement when Chief U.S. District Judge Vaughn R. Walker, who is presiding over the trial without a jury, interrupted him to ask how Proposition 8 could be discriminatory since California already allows gays to enter into domestic partnerships that carry the same rights and benefits of marriage.

"If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?" the judge asked.

Olson answered that such a move would resolve the constitutional issues but likely wouldn't be politically feasible.

Charles Cooper, who is representing Proposition 8 sponsors, launched into his opening statement by saying Proposition 8 was motivated not by "ill-will nor animosity toward gays and lesbians, but special regard for the institution of marriage."

"It is the purpose of marriage -- the central purpose of marriage -- to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together," he said.

Walker pressed for examples of how allowing gay couples to marry "in any way diminishes a procreative function or denigrates a marriage for an opposite-sex couple."

Cooper answered that the effect of gay marriage on traditional marriage is unknown because the practice is still so new. Only five states have opened the institution to same-sex couples, and three of them were required to do so by judges, he said.

"The people of California are entitled to await the results of the experiment and to assess them before they endorse a fundamental change in the definition of marriage," he said.